Mental Culpability at Issue Before the NY Court of Appeals

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil...[It is] almost as instinctive as the child's familiar exculpatory 'But I didn't mean to.'

Morissette v. U.S. (1952), Justice Robert Jackson

[T]his established concept has influenced our interpretation of criminal statutes...'even where the statutory definition did not in terms include it.' ....[T]he Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state--ignorance of the characteristics of weapons in their possession--makes their actions entirely innocent.

Staples v. U.S. (1994), Justice Clarence Thomas

[A] "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability" (Penal Law § 15.15[2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability" only when a mental state "is required with respect to every material element of an offense" (id.).

People v. Ryan (1993), Chief Judge Judith Kaye

The case before the Court of Appeals, People v. Elliot Parrilla, argued on March 30th, raises precisely these concerns. The Court is reviewing a conviction for criminal possession of a gravity knife.

Not for possession of  a butter knife or a Boy Scout knife. But a gravity knife. It's the gravity aspect that makes it a crime.

Now, related to this Parrilla case, and with Morissette, Staples, and Ryan in mind, let's consider the following:

To be guilty of stealing, must the person be aware that the property belongs to someone else--that it's not free for the taking?

To be guilty of possessing stolen property, must the person be aware that the property is stolen--that it wasn't purchased from the owner?

To be guilty of possessing a narcotic drug, must the person be aware that it's a narcotic drug--that it's not simply aspirin?

To be guilty of possessing an automatic weapon, must the person be aware it's an automatic--that it's not a single shot firearm?

The answer to all of those, of course, is yes.

The person must be aware. Must know.

At the least, the person must be aware that there's a good chance, have a real suspicion.

The person must know, or know that there's a chance, that the property belongs to someone else. That the property is stolen. That it's not aspirin. That it's not a single shot firearm.

That is the point of the Morissette and Staples and Ryan decisions.

Mental culpability is an crucial component of criminality.

Crime is not just about "What was he doing?" But also, "What was he thinking?"

That's what lawyers refer to as mens rea, the mind thing. [The Latin, as usual, sounds alot better!] That mens rea, mental culpability, is just as necessary a component of criminality as the person's action.

This is true for the most serious crimes as well as for others.

So, for example, a hunter is not guilty of murder for shooting and killing what looked like a deer, but was actually a human in camouflage. Not if the hunter had no idea.

Yes, the hunter intended to shoot. Yes, the hunter intended to kill. Yes, the hunter's target was what turned out to be a human. But he didn't know it was a human. Not guilty!

(Indeed, even the least egregious forms of human killing--e.g., negligent homicide, however that crime might be labelled--at least requires the mental culpability that the person should have known.)

In Morissette, the defendant was found guilty of stealing government property.

Did he know that he was taking something? Yes.

Did he know (or was it shown that he knew) that the property belonged to the government? No.

But did the prosecution argue that the defendant only needed to know that he was taking the property in order to be guilty (but not that he knew that the property belonged to the government)? Yes.

Did the Supreme Court reverse and (speaking through Albany Law School's Justice Robert Jackson) forcefully reaffirm that mental culpability regarding an essential element--i.e., the gravamen of the crime, that the property belonged to the government--is necessary for criminal responsibility? Yes!

And that was so even though the statute was silent on that point.

In Staples, the defendant was convicted of illegal possession of an automatic firearm--one that fires repeatedly with a pull of the trigger.

Did he know he possessed the firearm? Yes.

Did he know (or was it shown that he knew) that it was an automatic? No.

But did the prosecution argue that the defendant only needed to know that he had the firearm in order to be guilty (but not that he knew that it was an automatic)? Yes.

Did the Supreme Court reverse and unanimously reaffirm that mental culpability regarding an essential element--i.e., the gravamen of the crime, that the firearm was an automatic--is necessary for criminal responsibility? Yes!

And that was so even though the statute was silent on that point.

In Ryan, the defendant was convicted of an aggravated drug offense, based on the large quantity of the illegal hallucinogen.

Did he know about the illegal hallucinogen? Yes.

Did he know (or was it shown that he knew) anything about the large quantity of hallucinogen, which made the crime an aggravated one? No.

But did the prosecution argue that the defendant only needed to know about the hallucinogen in order to be guilty (but not that he knew anything about the quantity)? Yes.

Did the New York Court of Appeals reverse and (speaking through Chief Judge Kaye) hold that mental culpability regarding an essential element--i.e., the large quantity of hallucinogen, which was the basis for the aggravated form of the crime--is necessary for criminal responsibility for that crime? Yes!

And that was so even though the statute was silent on any mens rea on that point.

In all 3 cases--Morissette, Staples, and Ryan--a mens rea, mental culpability, for the essential element at issue was considered especially imperative because of the heavy penalty attached to the crime, as well as the the stigma of a felony conviction. In each case, the crime involved was punishable by several years imprisonment, and a conviction was seriously stigmatizing.

(These factors distinguished those crimes from the quasi-criminal regulatory or public welfare offenses for which the penalties are relatively light, from which there is no such stigma, and which the courts have thus exempted from the mens rea requirement. [E.g., restaurant regulation infractions, routine traffic offenses, violation of a noise ordinance, etc.])

In Parrilla, the case currently before the Court of Appeals, the lower courts ruled that guilt of the possessory crime involved did not require any mens rea for the essential element--the element that actually made it a crime.

So, according to those courts, criminal possession of a gravity knife did not require that the defendant knew it was a gravity knife--or even that he knew it might be a gravity knife (i.e., recklessness) or should have known it might be a gravity knife (i.e., mere negligence). No, according to the trial judge and then the intermediate appeals court, a person could be guilty of that crime with absolutely no clue that it was a gravity knife.

Yes, according to those courts, a person must know that he possessed something (as opposed to someone else having secretly placed that something in his coat pocket).

Yes, a person must know that what he possessed was a knife (as opposed having no reason to believe that the item had a blade).

And yet no, according to those courts, a person does not have to know--or suspect or even should have suspected--that the knife was a gravity one.

That single element--that it is a gravity knife--which transforms the possession of a knife into a crime, i.e., the very gravamen of that crime, requires absolutely no mental culpability? It's a strict liability crime?

Consider also that the crime of which the defendant was convicted in Parrilla is a class D felony, punishable by up to 7 years imprisonment. (The fact that the defendant "ha[d] been previously convicted of any crime" elevated the crime from a class A misdemeanor and enhanced the punishment from 1 year imprisonment.)

Additionally, criminal possession of  a dangerous weapon, especially one like a gravity knife that is frequently associated with violent individuals and gangs, is precisely the sort of stigmatizing crime that, as Justice Jackson wrote in Morissette, "stir[s] a sense of insecurity in the whole community and arouse[s] public demand for retribution."

All in all, consideration of this crime raises the most fundamental questions about mental culpability as a essential component of criminal responsibility:

• Possession (Knowledge required.)  + Knife (Knowledge required.) + Gravity type (Knowledge or even reason to know required?)
• No clear indication by the legislature that strict liability was intended.
• Serious punishment attached.
• Stigmatizing crime.

The considerations seem pretty compelling for requiring mens rea, mental culpability, for the essential element of gravity type knife. That element is the gravamen of the crime. It's what makes the possession a crime. It's what makes the possession deserving of punishment. Mens rea, mental culpability for that element would certainly seem imperative. 

Of course, the Court of Appeals might view the issue quite differently.

If it does, however, it would seem that the Court must clearly set forth some overriding rationale and interests that justify dispensing with such a crucial component of our criminal law.

Obamacare Subsidies Decision: Recap (part 2: the video)

As an appendix to the Recap on the immediately preceding post from earlier today, here's an interview with Liz Benjamin on her Capital Tonight.

Liz questions me about the Obamacare subsidies decision and about the housing discrimination case the Court decided the same day. She then turns to the recently announced retirement of New York Court of Appeals Judge Susan Read, and the dramatic change in the high court over the course of a few years--with Governor Andrew Cuomo being able to remake its entire membership.

Here's the link:

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.

Link:  http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Obamacare Subsidies Decision: Recap

(Friday's marriage decision...Must be honest: Alleluia!

We'll recap that in the next post.
Well, a later post.)

We previewed the Obamacare subsidies case a couple of weeks ago:
Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 2--Obamacare)
[BTW, called it! Both the outcome and the voting line-up. Of course, if you make predictions, every once in a while you'll get one right.]

Here's a recap of the specifics of the decision in King v. Burwell:

Decision

• Tax subsidies are available for purchases of health insurance on the federally established markets ("exchanges"), as well as on those established by the states.
• The vote was 6 to 3.
• Majority: Chief Justice Roberts, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan [I.e., Roberts & Kennedy + the 4 liberals]
• Dissent: Justice Scalia, joined by Thomas and Alito [I.e., the 3 most conservative Justices]
•  [The decision basically saves the health insurance scheme under the Affordable Care Act (ACA "Obamacare"). Most insurance purchases under the law have been made through the federal exchanges because most states--under Republican control--have refused to set up their own state exchanges.]

Chief Justice Roberts' Opinion for the Court/Majority

• The Massachusetts health insurance plan has succeeded in drastically expanding access to health care coverage [Roberts seems very positive about the Massachusetts plan, aka "Romneycare"]
• The federal plan was modeled after that one
• Essential to both plans is assistance to make insurance affordable to lower income purchasers
• Under the ACA, the federal plan, states are authorized to establish exchanges, and the federal government is required to do so in states that don't
• The "inartfully" drafted ACA provides that tax subsidies are available when insurance is purchased on "an Exchange established by the State"
• Considering the entire law and its purpose, that provision must include what the law refers to as a federally established "such Exchange within the State" 
• Otherwise, because the law restricts insurance purchases to an individual who "resides in the State that established the Exchange," purchases would not even be allowed on federally established exchanges and they would, thereby, serve no purpose whatsoever
• Further, the unavailability of subsidies on federal exchanges would create "death spirals" in the health insurance markets that both the Massachusetts and federal plans were intended to avoid; the result would be "calamitous"

Justice Scalia's Opinion for the Dissenters

• It is "quite absurd" to say that "Exchange established by the State" means "Exchange established by the State or the Federal Government"
• We must presume that lawmakers mean the "natural and ordinary signification" of the words they use
• The Court's majority has engaged in "somersaults of statutory interpretation" that will add confusion to "honest jurisprudence"
• The majority's principle: "The Affordable Care Act must be saved"
• The law should now be called "SCOTUScare"

To recap the recap:

1) Federal and state exchanges are to be treated equally--specifically for the availability of  tax subsidies for lower income purchasers of health insurance.

2) Roberts for the majority: "an exchange established by the state" should be interpreted in coordination with the entire law and its overriding purpose--hence, that phrase should be read to include a federal exchange established in a state that failed to set one up itself.

3) Scalia for the dissenters: the phrase means only what it says--no more, no less.

In the next--ummm, a later--post we'll recap the same-sex marriage decision.